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Official Opinion 99-12

Official Opinion 99-12

July 28, 1999

To:

Commissioner Georgia Department of Corrections

Re:

Inmate labor may not be used to work for a solid waste management facility that is operated by a private, for-profit entity, where the inmate labor inures to the benefit of that private, for-profit entity.

This responds to your request for an opinion of this office regarding the propriety of the use of inmate labor at the Crisp County Solid Waste Management Authority (“the Authority”) facility.

It is my understanding that the Authority, created pursuant to O.C.G.A. § 12-8-53, has contracted with a private, for-profit entity to provide a variety of consulting services to its facility and to market for sale the materials of value (i.e., glass, metals, plastics, etc.) extracted from the waste stream therein processed. In addition to payment for consulting services, the private, for-profit entity is paid an established percentage of the revenues derived from the sale of materials of value extracted from the waste stream. Such an agreement is generally authorized by O.C.G.A. § 12-8-56.

The Authority subsequently contracted with the Department of Corrections to provide inmate work details to actually extract the materials of value from the waste stream. Under the contract, the Authority reimburses the Department for the cost of the services of the correctional officers who supervise the inmate work details. It is under this factual scenario that your inquiry must be analyzed.

[I]nmates shall not be hired out to private persons or corporations, nor shall any instrumentality of government authorized by this subsection to utilize penal labor use such labor in any business conducted for profit, except as provided in Code Section 42-5-59 [enabling inmate work training programs] . . . .

This Code Section derives its authority from the prohibition against the granting of gratuities found in the Georgia Constitution. Ga. Const., Art. III, Sec. VI, Para. VI. See also 1957 Op. Att’y Gen. p. 246 (gratuities clause applies to departments of state government).

Clearly, the situation presented herein does not constitute an inmate training program in which inmates are being employed in the community pursuant to O.C.G.A. § 42-5-59. Rather, the agreement is intended to provide for the use of inmate labor by a “public authority” as generally authorized by O.C.G.A. § 42-5-60. In fact, the use of inmate labor by the various solid waste management authorities enabled by O.C.G.A. § 12-8-53 and created in many cities and counties across the state is not prohibited by O.C.G.A. § 42-5-60. Certainly, working for these authorities, which are non-profit public entities, is an authorized use of such labor, and it is my understanding that the Department allows inmate labor to be used at several such facilities around the state.

In the present situation, however, the existence of a private, for-profit company that has contracted with the Authority to provide various consulting services and to market, for profit, its products presents an additional consideration. Although the labor performed by inmates at the Authority facility may be indistinguishable from that performed by inmates at any of the other such facilities where inmate labor is used, this particular case is differentiated by the fact that the inmate labor in this circumstance inures to the benefit of the private vendor (i.e., by compensation received through the marketing and sale of materials of value recovered from the waste stream which is processed by inmate labor).

This office has previously opined that the use of inmate labor on private property is permissible in situations where the sole benefit of that labor flows to the state. 1969 Op. Att’y Gen. 69-158. Although the instant scenario does not include the use of inmate labor on private property, it presents a situation where the marketing and sale of products (i.e., materials of value) has been contracted to a private, for-profit entity which will derive benefit from the labor performed by both inmates and non-inmates at the facility. This clearly runs afoul of the prohibition contained in O.C.G.A. § 42-5-60(a).

Thus, given the factual scenario presented, it is my official opinion that the use at the Authority facility of inmate labor that inures to the benefit of a private, for-profit entity is prohibited.